London Borough of Islington v A Parent
| Jurisdiction | UK Non-devolved |
| Judge | Judge Stout |
| Neutral Citation | [2024] UKUT 252 (AAC) |
| Published date | 03 September 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
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IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
London Borough of Islington
Appellant
- v -
A Parent
Respondent
Before: Upper Tribunal Judge Stout
Hearing date(s): 16 August 2024
Mode of hearing: By video
Representation:
Appellant: Mr B Harrison (counsel)
Respondent: In person
On appeal from:
Tribunal: First-Tier Tribunal (Health Education and Social Care) (Special
Educational Needs and Disability)
Tribunal Case No: EH206/23/00055
Tribunal Venue: By video
Decision Date: 20 March 2024
Appeal No. UA-2024-000883-HS
Neutral Citation Number: [2024] UKUT 252 (AAC)
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Islington v A Parent
Appeal no. UA-2024-000883-HS
[2024] UKUT 252 (AAC)
RULE 14 Order
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008,
it is prohibited for any person to disclose or publish any matter likely to lead
members of the public to identify the respondent in these proceedings, or her
son. This order does not apply to: (a) the respondent; (b) any person to whom
the respondent discloses such a matter or who learns of it through publication
by the respondent; or (c) any person exercising statutory (including judicial)
functions where knowledge of the matter is reasonably necessary for the
proper exercise of the functions.
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Islington v A Parent
Appeal no. UA-2024-000883-HS
[2024] UKUT 252 (AAC)
SUMMARY OF DECISION
SPECIAL EDUCATIONAL NEEDS (85)
The effect of section 39(4) of the Children and Families Act 2014 (CFA 2014) is that
parental preference for a school (approved under section 41 of the CFA 2014)
should be complied with unless the school is unsuitable or the child’s attendance at
the school would be incompatible with the efficient education of others or the
efficient use of the local authority’s resources. This case was concerned with the
latter exception under section 39(4)(b)(ii) for incompatibility with the local authority’s
resources. The local authority had proposed that C should attend a special academy
school in its area which had a vacant place; parental preference was for a
community special school in a neighbouring local authority which said it was
oversubscribed. The local authority respondent to the appeal provided evidence as
to the cost of its preferred placement and brought the Headteacher of that school to
the hearing as a witness. The local authority provided email and letter evidence from
the parent’s preferred school and the neighbouring authority as to the costs of
placement at that school, but the neighbouring authority and parent preferred school
had refused to provide a witness for the hearing. The First-tier Tribunal directed itself
that the burden of proof was on the local authority to prove the true costs of the two
placements. It found the local authority’s evidence “unreliable” and accordingly
rejected it and ordered that the school of parental preference should be named in
Section I.
Held:- The Tribunal had erred in law in placing a burden of proof on the local
authority. The Tribunal’s task on appeal is to ‘stand in the local authority’s shoes’
and apply section 39(4) properly to the facts of the case before it, exercising its
inquisitorial jurisdiction as appropriate to ensure it has the necessary evidence on
which to fairly determine the appeal. The Tribunal’s rejection of the local authority’s
evidence was perverse. It had also proceeded unfairly because it had failed to raise
its concerns with the parties at the hearing. In any event, if the Tribunal had concerns
about the reliability of the local authority’s evidence or required further detail, it
needed to consider exercising its case management powers to require the parties
and/or the third party local authority and school to provide further documentary
evidence or to order a witness from the third party local authority or school to attend
the hearing. Only the Tribunal in this case had the power to direct the third party
local authority and school to provide evidence; the local authority respondent did not
have that power. On the facts of this case, it was perverse for the Tribunal not to
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